Joan C. Williams Double Jeopardy? An Empirical Study with Implications for the Debates over Implicit Bias and Intersectionality 37 Harvard Journal of Law & Gender 185 (Winter, 2014) Introduction. 186 I. The NSF Study. 189 A. Methodology. 189 B. No Surprise: Women of Color Encounter Racial as well as Gender Bias. 194 C. Black Women. 195 D. Latinas. 205 E. Asian American Women. 212 II. Implications for the Debate over Implicit Bias. 219 III. Implications for the Intersectionality Debate. 233 A. Intersectional Plaintiffs' Fate in... 2014
Cynthia M. Ho Drugged Out: How Cognitive Bias Hurts Drug Innovation 51 San Diego Law Review 419 (May-June 2014) I. Introduction. 420 II. Background. 431 A. Pharmaceutical Development and Commercialization. 431 1. Types of Drugs. 431 2. Patent Theory and Practice: The Case of Drugs. 433 B. The Existence and Importance of Schemas. 436 1. Individuals and Groups View Information Through Schemas. 437 2. Schemas Are Maintained Through Confirmation Bias. 438 a.... 2014
Sharon E. Rush Federalism, Diversity, Equality, and Article Iii Judges: Geography, Identity, and Bias 79 Missouri Law Review 119 (Winter, 2014) Each individual has a background, and that background shapes the individual's views about life, creating an inevitable form of bias referred to as experiential bias. Experiential bias is shaped by many identity traits, including, among others, race, sex, sexual orientation, religion and even geography. The geographic identity of state judges and... 2014
Jessica M. Salerno , Mary C. Murphy , Bette L. Bottoms , Arizona State University, Indiana University, University of Illinois at Chicago Give the Kid a Break--but Only If He's Straight: Retributive Motives Drive Biases Against Gay Youth in Ambiguous Punishment Contexts 20 Psychology, Public Policy, and Law 398 (November, 2014) Two studies addressed how people punish juvenile sex offenders in ambiguous punishment contexts. Sex offender registry laws now make voluntary sexual activity between juveniles a registration-worthy offense in the U.S. Using contemporary prejudice theories as a theoretical framework, we tested whether the ambiguity surrounding the application of... 2014
Jennifer Ator How to Overcome Gender Bias When it Stares You in the Face 40 No. 3 Law Practice 58 (May/June, 2014) RECENTLY I WAS personally reminded that gender bias and stereotyping are all too alive and well in 21st-century America. The venue, of all places, was a courtroom. I was attending motion calendar 70 miles from home and arrived a few minutes into the proceedings. I sat down in the front row, and a gentleman at counsel's table turned to me and asked... 2014
Justice Michael B. Hyman Implicit Bias in the Courts 102 Illinois Bar Journal 40 (January, 2014) Implicit bias and stereotypes can negatively affect the fairness of legal proceedings. This article alerts the profession to unconscious attitudes and their hidden dangers. Do you need a translator? the judge asked the middle-aged man dressed in an open-collared white shirt and slacks as he approached the bench. Guessing from his last name that... 2014
Hana Maruyama Implicit Bias Training Comes to Wyoming 37-JUN Wyoming Lawyer 38 (June, 2014) This is implicit bias, says Kimberly Papillon, who trains people to recognize and overcome the biases they didn't know they had using neuroscience. On June 25-27, 2014, she will be in Cody, Wyoming, to train 200 attendees of the National Consortium on Racial and Ethnic Fairness in the Courts, which is hosted by the Heart Mountain Wyoming Foundation... 2014
Sara K. Rankin Invidious Deliberation: the Problem of Congressional Bias in Federal Hate Crime Legislation 66 Rutgers Law Review 563 (Spring 2014) Through the enactment of federal hate crime laws, Congress decides which groups are most vulnerable to bias motivated-violence, and which groups are worthy of statutory protection against such crimes. This Article contends that such congressional decisions--specifically the selection of which groups are entitled to protection under federal hate... 2014
Bill Kanasky, Jr. Juror Confirmation Bias: Powerful, Perilous, Preventable 33 No. 2 Trial Advocate Quarterly 35 (Spring, 2014) People tend to interpret new information in a way that confirms their existing beliefs. This is called confirmation bias. Psychologist Bill Kanasky explains here that confirmation bias affects both potential jurors and trial attorneys, and suggests some strategies for minimizing its effect. In science, you move closer to the truth by seeking... 2014
Equal Justice Society, Wilson Sonsini Goodrich, Rosati Lessons from Mt. Holly: Leading Scholars Demonstrate Need for Disparate Impact Standard to Combat Implicit Bias 11 Hastings Race and Poverty Law Journal 241 (Summer, 2014) I always loved my home and was glad that I could provide housing to my children, grandchildren, and great grandchild. I also always loved my neighborhood as there is a strong sense of community here for us. We have known many of our neighbors for many years and we raised our families together. . . . When in 2003 we heard about the Township's plans... 2014
Nicole E. Negowetti Navigating the Pitfalls of Implicit Bias: a Cognitive Science Primer for Civil Litigators 4 St. Mary's Journal on Legal Malpractice & Ethics 278 (2014) Abstract. Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a... 2014
Dov Fox Neuro-voir Dire and the Architecture of Bias 65 Hastings Law Journal 999 (May, 2014) Courts and commentators routinely assume that bias on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and... 2014
Brock Boone The Curious Case of Child Support Magistrate Lu Ann Ballew: a Demonstration of the Problem with Religious Bias in Judicial Decisionmaking 27 Georgetown Journal of Legal Ethics 391 (Summer, 2014) Columbia Law professor Kent Greenawalt stated in 1996 that [a]t this stage of United States history, one does not find explicitly religious grounds in opinions, even when courts reach beyond standard legal sources to comment on the social benefits or harms of a possible ruling. Almost twenty years later, Child Support Magistrate Lu Ann Ballew... 2014
Nickolas Kaplan 'The Fire [This] Time': Ferguson, Implicit Bias, and the Michael Brown Grand Jury 20 Public Interest Law Reporter 52 (Fall 2014) America has continued to witness countless police and vigilante killings of young, unarmed black men in the last decade. Each killing, acquittal, and non-indictment renews scrutiny over America's violent racial oppression in the postracial 21st century. , Even when community activism yields prosecutorial action, implicit biases and representation... 2014
Jamie Bigayer Voir Dire for Dummies: Using Visual and Auditory Cues and Question Design to Avoid the Pitfalls of Bunk Science, Gender Stereotypes, Perceptual Errors, and the Social Desirability Bias 21 Duke Journal of Gender Law & Policy 369 (Spring, 2014) Introduction. 370 I. Pitfalls To Avoid. 372 A. Bunk Science. 372 B. Stereotypes. 375 C. Perceptual Errors. 377 II. Deciphering Visual and Auditory Cues. 378 A. Introduction. 378 B. Establish a Baseline. 382 C. Visual Cues. 383 D. Auditory Cues. 390 E. Use A Partner. 394 III. Question Design. 395 A. Introduction. 395 B. Construct Validity. 395 C.... 2014
Govind Persad When, and How, Should Cognitive Bias Matter to Law? 32 Law & Inequality: A Journal of Theory and Practice 31 (Winter 2014) Findings about cognitive bias drawn from behavioral science have been used to justify rejecting stare decisis, changing consumer credit laws, regulating performance-enhancing drugs, revising the doctrine of fiduciary responsibility, and ceasing to treat some juvenile convictions as strikes under a three strikes law. These arguments share a... 2014
Susan Navarro Smelcer, Amy Steigerwalt, and Richard L. Vining, Jr. Where One Sits Affects Where Others Stand Bias, the Bar, and Nominees to Federal District Courts 98 Judicature 35 (July-August 2014) The federal judicial appointment process receives substantial attention from social scientists. Numerous studies of Senate confirmation votes, the duration of confirmation processes, and the presidential selection of judicial nominees have added to our knowledge. However, a relatively small body of literature examines the vetting of judicial... 2014
Michael J. Higdon A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias 87 Saint John's Law Review 171 (Winter 2013) Everywhere you look in modern America--in the Hollywood Hills or the canyons of Wall Street, in the Nashville recording studios or the clapboard houses of Cambridge, Massachusetts--you see elites mastering the art of perpetuating themselves. - The Economist, January 1, 2005 The Japanese macaque, or snow monkey as it is often called, is one of... 2013
Daniella A. Schmidt Bathroom Bias: Making the Case for Trans Rights under Disability Law 20 Michigan Journal of Gender & Law 155 (2013) Disability law is one of the more successful tools currently being used to protect trans people from discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated... 2013
Robin Walker Sterling Children Are Different: Implicit Bias, Rehabilitation, and the "New" Juvenile Jurisprudence 46 Loyola of Los Angeles Law Review 1019 (Spring, 2013) In several recent Supreme Court decisions, the Court has expanded the protections available to juvenile offenders in the criminal justice system, based on adolescent brain development research demonstrating that children merit different considerations than adults. This Article chronicles the Court's recent juvenile justice decisions from Roper v.... 2013
Lance D. Reich Cognitive Biases 10 No. 1 SciTech Lawyer 4 (Fall, 2013) The natural cause of the human mind is certainly from credulity to skepticism. --Thomas Jefferson People often read stories of trials that make apparently fantastic factual determinations. For example, an award of billions in damages for a company's production of a chemical whose link to causing harm is very tenuous. Or an engineer is held liable... 2013
Kerri L. Pickel, Todd C. Warner, Tarah J. Miller, Zachary T. Barnes, Ball State University, University of Virginia, Ball State University Conceptualizing Defendants as Minorities Leads Mock Jurors to Make Biased Evaluations in Retracted Confession Cases 19 Psychology, Public Policy, and Law 56 (February, 2013) Criminal suspects who confess during interrogations sometimes retract their confessions and go to trial. Jurors must then evaluate the voluntariness and authenticity of the confession and determine guilt. Previous research indicates that focusing the camera on the detective and defendant equally (rather than on the defendant alone) while recording... 2013
Valena Elizabeth Beety Criminality and Corpulence: Weight Bias in the Courtroom 11 Seattle Journal for Social Justice 523 (Winter, 2013) Despite being a weight-obsessed culture, the United States and other western countries are becoming heavier. Being fat is no longer personal. In study after study, hostility toward fat, also known as weight bias, is increasing at a rate that outpaces the rate of obesity. American society condemns size and weight because individuals as viewed as... 2013
Andrew E. Taslitz Curing Own Race Bias: What Cognitive Science and the Henderson Case Teach about Improving Jurors' Ability to Identify Race-tainted Eyewitness Error 16 NYU Journal of Legislation and Public Policy 1049 (2013) This article examines the role eyewitness identifications tainted by the own race bias may play in jury deliberations. It discusses the causes of own race bias in eyewitness identifications, and provides recommendations for how jurors should be informed about own race bias in order to identify race-tainted eyewitness error. It argues that both... 2013
Matthew I. Fraidin Decision-making in Dependency Court: Heuristics, Cognitive Biases, and Accountability 60 Cleveland State Law Review 913 (2013) On tens of thousands of occasions each year, state court judges wrongly separate children from their families and place them in foster care. And while a child is in foster care, judges are called on to render hundreds of decisions affecting every aspect of the child's life. This Article uses insights from social psychology research to analyze the... 2013
Debra Lyn Bassett Deconstruct and Superstruct: Examining Bias Across the Legal System 46 U.C. Davis Law Review 1563 (June, 2013) Introduction. 1563 I. Deconstruct: The Psychology of Unconscious Bias. 1565 II. Superstruct: Implicit and Unconscious Bias in the Context of Legal Proceedings. 1573 Conclusion. 1582 The fourth edition of Webster's New World College Dictionary defines bias as a mental leaning or inclination; partiality; bent[,] . . . to cause to have a bias;... 2013
Philip E. Tetlock, Gregory Mitchell, L. Jason Anastasopoulos Detecting and Punishing Unconscious Bias 42 Journal of Legal Studies 83 (January, 2013) We present experimental results demonstrating how ideology shapes evaluations of technology aimed at detecting unconscious biases: (1) liberals supported use of the technology to detect unconscious racism but not unconscious anti-Americanism, whereas conservatives showed the reverse pattern, (2) liberals and conservatives opposed punishing... 2013
Christopher Cerullo Everyone's a Little Bit Racist? Reconciling Implicit Bias and Title Vii 82 Fordham Law Review 127 (October, 2013) Since its enactment as part of the Civil Rights Act of 1964, Title VII's main purpose has been to end all forms of employment discrimination. Through a flexible judicial interpretation of Title VII that reached newly discovered forms of discrimination, and through occasional intervention by Congress to update the statute, Title VII has been largely... 2013
Abbey L. Thompson Evidence--is Rule 606(b) Constitutional When it Is Applied to Bar Testimony about Jury Racial Bias?--united States V. Shalhout, 507 F. App'x 201 (3d Cir. 2012) 37 American Journal of Trial Advocacy 225 (Summer, 2013) Federal Rule of Evidence 606(b) faces potential constitutional hurdles when, after the verdict has been rendered, a juror attempts to provide evidence or testify about racial prejudices during jury deliberations. Rule 606(b) provides, [d]uring an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made... 2013
Freddy Rubio Hispanic Litigants and Jury Bias in Alabama 33 Alabama Association for Justice Journal 43 (Spring, 2013) The Sixth Amendment of the United States Constitution guarantees [i]n all criminal prosecutions, the accused shall enjoy the right to . a trial, by an impartial jury. Furthermore, the Seventh Amendment provides that in civil trials the right of trial by jury shall be preserved. Despite these statements in the Constitution, juries may be far... 2013
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